1 Performa SaaS Agreement 433915v1
PERFORMA SOFTWARE-AS-A-SERVICE AGREEMENT THIS PERFORMA SOFTWARE-AS-A-SERVICE AGREEMENT (together with all attachments hereto, the “Agreement”), is made effective as of March 1, 2025 (the “Effective Date”) ending December 31, 2026 and supersedes any previous agreements regarding PERFORMA SOFTWARE-AS-A-SERVICE, by and between PERFORMA LABS, INC., a Delaware corporation having its principal place of business at 19600 Fairchild Rd, Suite 300, Irvine, CA 92612 (“PERFORMA”) and Fresno Police Department, a Municipal Police Department having its principal place of business at 2326 Fresno St, Fresno, CA 93721 (“Client”). Recitals WHEREAS, PERFORMA's App (App) (as defined below) and proprietary training material provide to California peace officers self-study training that is approved and certified by the California Commission on Peace Officer Standards and Training (“POST”); WHEREAS, the California state legislature requires California peace officers to complete certain POST-certified training courses during each POST Mandate Cycle (as defined below) (completion of each such training course, “POST Credit”); WHEREAS, the App allows law enforcement agencies to train peace officers using realistic scenarios based on actual body worn camera footage, allows App users flexibility to complete training at their convenience and in accordance with an agency’s policy, schedule, and allows agencies to monitor the progress and completion of training; and WHEREAS, Client desires to utilize the App in conjunction with in-person and other training programs to comply with POST requirements, to simplify and decrease the effort, time, and cost of training, and to increase the efficacy of Client’s training program. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, PERFORMA and Client agree as follows: 1. Definitions. As used in this Agreement, the following capitalized terms have the meanings set forth below:
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
2 Performa SaaS Agreement 433915v1
“Admin Console” is a function provided in connection with the App to allow designated Client Admin(s) to access Admin Reports electronically. “Admin Report” means data provided in electronic form created and compiled by PERFORMA for Client Admin(s) concerning the progress and completion of Modules by Users. “Anonymized Data” means electronic data or information compiled or derived by PERFORMA based on User Data that has been deidentified, aggregated or anonymized such that it cannot reasonably be linked to Client or a particular User. “App” means the iOS and Android mobile application that PERFORMA provides to Client Admins and Users to access the Service. “Client Admins” means the persons employed by Client who shall be PERFORMA’s primary points of contact regarding the Service. Client shall have at least one designated Client Admin. Each Client Admin shall have access to Admin Reports. “Module” means a proprietary self-study training module consisting of four (4) Training Courses available to authorized Users through the App. “POST Mandate Cycle” means each two-year training period established by the California state legislature during which peace officers shall complete certain POST-certified training content for POST Credit, if applicable. A POST Mandate Cycle runs from January 1, 2021 through December 31, 2022; January 1, 2023 through December 31, 2024; and so on and so forth every two (2) calendar years thereafter. “Renewal Term” means any additional period by which the Term of this Agreement is extended beyond the initial Subscription Term. Renewal shall be subject to the mutual written agreement of the parties. “Seat” means access to the Service via the App by a single unique User for the completion of one (1) Training Course or Module (as set forth on Attachment A), and such Training Course’s or Module’s associated POST Credit, if applicable, during the Subscription Term or Renewal Term then in effect.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
3 Performa SaaS Agreement 433915v1
“Service” means providing (i) those Training Courses and Modules set forth on Attachment A to Users via the App and (ii) Admin Reports to Client Admins via the App or electronically. The Service includes PERFORMA’s storing, hosting, managing, maintaining, and supporting the Software, App, and Admin Console. “Service Fees” means the total fees charged for all Seats purchased during the Term of this Agreement. “Software” means PERFORMA’s proprietary software (including algorithms and domain expertise) and associated third-party software used by PERFORMA to provide the Service. “Subscription Term” means the period during which PERFORMA shall make the Software available for use by Users as set forth on Attachment A. “Term of this Agreement” means the period commencing on the Effective Date and terminating upon termination of this Agreement. The Term of this Agreement shall include the Subscription Term together with all Renewal Terms (as defined below), if any. “Training Course” means a single training course completed by a User during the Subscription Term or Renewal Term then in effect. “Users” means those Client personnel authorized to use the App and the Service. “User Data” means all electronic data or information submitted by Client and Users to the Service, as well as any electronic data or information generated or recorded by Performa concerning Client or Users’ use of the Service. 2. Provision of the Service. PERFORMA shall make the Service available to Client and Users during the Subscription Term pursuant to the terms and conditions set forth in this Agreement. 3. Use of the Service. 3.1 POST Reporting. When a User completes or passes a Training Course or Module eligible for POST Credit, Client authorizes PERFORMA to report to POST the name of the User and the results of the Training Course or Module.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
4 Performa SaaS Agreement 433915v1
3.2 Client Responsibilities. 3.2.1 Client Admins. Client shall notify PERFORMA in writing of the name, title, telephone number, and email address of each of its Client Admins. Client shall keep this information up to date during the Term of this Agreement. Client shall have at least one designated Client Admin at all times during the Term of this Agreement. 3.2.2 User Eligibility and Conduct. Client shall provide the names and email addresses (departmental or Client web domain email addresses only) of those persons who shall be Users of the Service. Client shall submit User information in an electronic format provided or specified by PERFORMA. 3.2.1.1 Client is responsible for determining the eligibility of persons who it designates as Users under this Agreement. Users shall be employees of Client and at least 18 years of age. 3.2.1.2 Client shall be liable for any conduct or actions of its Users that violates this Agreement. 3.2.1.3 Client shall notify PERFORMA within five (5) days of any User who is no longer eligible or authorized to be a User, including but not limited to ineligibility by reason of termination of employment with Client. 3.2.2 Client Policies. Client shall establish a training schedule and policies governing its Users’ use of the Service, which policies shall not conflict with the terms set forth in this Agreement. As between Client and PERFORMA, Client shall be solely responsible for scheduling permitted times that Users may access the Service and ensuring that its Users complete all training in a timely manner (e.g., prior to the termination of a POST Mandate Cycle, the Subscription Term, or a Renewal Term, as applicable).
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
5 Performa SaaS Agreement 433915v1
3.2.3 Client-Determined Responses. From time to time Client may, in its sole and reasonable discretion, determine and assign responses to questions posed to its Users in Training Courses; provided, that Client shall ensure any such responses comply with Client policies, practices, and guidelines; provided further, that Client acknowledges PERFORMA undertakes no obligation to review or confirm the accuracy of any such responses, and disclaims all liability in connection with any such responses; and provided further, that Client shall indemnify, hold harmless, and defend PERFORMA from any liability, losses, suits, claims, damages, and expenses which arise out of any such responses. 3.3 Usage Guidelines. 3.3.1 Permitted Use. Client and Users shall use the Service solely for training Users and monitoring Users’ training progress through the Admin Console as contemplated by this Agreement. 3.3.2 License Grant and Restrictions. 3.3.2.1 PERFORMA hereby grants a license to one (1) Seat to each User of the Service. Once a Seat is assigned to a User, (i) the User shall create a User ID and password, (ii) such Seat license may not be transferred to another User. Access to that Seat and its related training content, and the license granted thereto, shall automatically terminate upon the earlier of (A) the termination of the Subscription Term or Renewal Term then in effect, and (B) the date such User is no longer permitted to access the Service, including as a result of Client’s termination of User’s employment. 3.3.2.2 Upon commencement of a Renewal Term, each User shall be granted a new license to one (1) Seat to Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
6 Performa SaaS Agreement 433915v1
access the Service, complete the associated Training Course or Module (as set forth on Attachment A), and obtain associated POST Credit, if applicable; provided that Client shall remit to PERFORMA Service Fees for each Seat during the Renewal Term in accordance with Section 4.1. 3.3.3 Additional Seat Purchases. Client may, from time to time during the Term of this Agreement, elect to assign Seats in excess of that number of Seats purchased on Attachment A to Users through the Admin Console (such Seats, the “Additional Seats”). Each Additional Seat assigned to a User shall be subject to PERFORMA’s prices then-prevailing rates and Client shall remit payment for all such Additional Seats upon receipt of PERFORMA’s invoice therefor in accordance with Section 4. Users of Additional Seats shall be subject to those terms and conditions set forth herein that are applicable to Seats. 3.3.4 Prohibited Uses. 3.3.4.1 Client, Client Admins, and Users shall not copy, reverse engineer, license, sublicense, sell, resell, rent, transfer, lease, assign, distribute, time share, or otherwise commercially exploit or make the Service, App, Admin Console, and Modules available to any third party. Without limiting the generality of the foregoing, Users and Client Admins may not take screenshots or screen captures or any other reproduction of the App or Modules. 3.3.4.2 Client, Client Admin(s), and Users shall not attempt to gain unauthorized access to the Service, App Modules, Admin Console, and related systems or networks.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
7 Performa SaaS Agreement 433915v1
3.3.4.3 Client, Client Admin(s), and Users shall not share their login information to access the App, including User IDs and passwords, with any other persons or display any content of the Modules to any other persons. 3.3.5 Compliance with Guidelines. Client shall be responsible for ensuring that all Client Admins and Users comply with the use guidelines set forth in this Section 3.3, as well as any additional reasonable guidelines and policies established by Client for their personnel regarding use of the App and Service as communicated to PERFORMA by Client from time to time during the Term of this Agreement. PERFORMA reserves the right to block access to the Service by any person who violates the terms of this Agreement or otherwise interferes with PERFORMA’s ability to provide the Service to any Client, Client Admin, or User. 3.3.6 Accessing the App. Client, Client Admins, and Users shall download the App using a private link provided by PERFORMA. Client, Client Admins, and Users shall provide their own Internet service and mobile devices operating on either iOS or Android operating systems. No other operating systems are supported at this time. The Service is not available through a web browser. 3.3.7 Supported Software. PERFORMA supports use of the App only on devices using the most current version of the iOS or Android operating systems and the prior two versions of such operating systems. New releases of the iOS or Android operating systems may not be supported for up to three months after their public release. 4. Service Fees and Payments. 4.1 Service Fees. Client shall pay for 215 licenses during the first year, with an option in YEAR 2 of purchasing additional licenses, as identified by Client, up to 850 licenses.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
8 Performa SaaS Agreement 433915v1
4.2 Refunds. Service Fees are not refundable in whole or in part in the event that Users do not use, complete, or pass the Training Course or Module for which the Seat was purchased. 4.3 Invoicing & Payment. The Service Fees shall be invoiced by PERFORMA as set forth on Attachment A. Payments are due within 30 days of Client’s receipt of the invoice. Any invoices unpaid after 30 days will be subject to interest at the rate of five percent (5%) per annum. 4.4 Suspension of Service. If the Service Fees (except fees then subject to Client’s good faith dispute) are 45 days or more overdue, then, in addition to any of its other rights or remedies, PERFORMA may suspend Client’s access to the Service, without liability to Client, until all such amounts are paid in full. 4.5 Taxes. Unless otherwise stated, PERFORMA’s fees do not include any local, state, federal, or foreign taxes, levies or duties of any nature (“Taxes”). Client is responsible for paying all Taxes, excluding taxes based only on PERFORMA’s income. If PERFORMA has the legal obligation to collect or remit Taxes for which Client is responsible under this section, the amount of such Taxes shall be invoiced to and paid by Client unless Client provides PERFORMA with a valid Tax exemption certificate authorized by the appropriate taxing authority. 5. Proprietary Rights. 5.1 Reservations of Rights. Client acknowledges that in providing the Service, PERFORMA utilizes (i) the PERFORMA name, the PERFORMA logo, the PERFORMA-LABS.com domain name, the product and service names associated with the Service, and other registered or unregistered trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how, and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “PERFORMA Technology”) and that the PERFORMA Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
9 Performa SaaS Agreement 433915v1
Technology is covered by intellectual property rights owned or licensed by PERFORMA (collectively, “PERFORMA IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in or to the PERFORMA Technology or PERFORMA IP Rights are granted to Client, Client Admins, or Users, and all such licenses and rights are and shall remain with PERFORMA and its licensors and are hereby expressly reserved. 5.2 License Grant. PERFORMA grants Client and its Users a worldwide, non-exclusive, non-transferable, non-sublicensable right to access and use the App and Software hosted by PERFORMA in connection with PERFORMA’s provision of the Service in accordance with the terms of this Agreement. 5.3 Restrictions. Client and Users shall not (i) modify, copy, or create derivative works based on the Service or the PERFORMA Technology; (ii) create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service; (iii) bypass or breach any security device or protection used by the Service or access or use the Service other than by a User through the use of his or her own then-valid access credentials; (iv) remove, delete, alter, or obscure any trademarks, specifications, documentation, end-user license agreement, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Service; or (v) disassemble, reverse engineer, decode, or decompile the Service or PERFORMA Technology, or otherwise attempt to derive or gain access to it, for any reason whatsoever, including to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service. Client, Client Admins, and Users may not create, store, or disseminate screenshots or capture screen images from the App, Module(s), or Admin Console. 5.4 Suggestions. PERFORMA shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
10 Performa SaaS Agreement 433915v1
enhancement requests, feedback, recommendations, or other information provided by Client or its Users relating to the operation of the Service. 5.5 User Data and Anonymized Data. Client Admin(s) and User(s) may access electronically certain User Data and Anonymized Data that PERFORMA derives therefrom. The parties agree that all such User Data and Anonymized Data are the exclusive property of PERFORMA; provided, however, that PERFORMA shall maintain the confidentiality of all User Data and shall not disclose User Data to any third party without the written consent of Client unless required to do so in response to a subpoena, discovery request, document request, Public Records Act request, or any other valid court order, or as otherwise required by applicable law or regulation. 5.6 Compelled Disclosure. In the event PERFORMA is required by law, regulation, or a valid and effective subpoena or order issued by a court of competent jurisdiction to disclose User Data or any other information (with the exception of Anonymized Data) related to this Agreement (any such request, a “Compelled Disclosure”), PERFORMA shall promptly notify Client in writing of the existence, terms and circumstances surrounding such Compelled Disclosure so that Client may take any measures, at Client’s expense, that it deems appropriate to oppose or respond to the request. At Client’s request, PERFORMA shall provide all cooperation and assistance as may reasonably be requested by Client in responding to the Compelled Disclosure, or seeking a protective order or other appropriate remedy to prevent or limit the scope of any such Compelled Disclosure. Client shall promptly reimburse PERFORMA for all costs or expenses of whatever kind, including personnel-related costs, reasonable attorneys’ fees, court costs and expenses, and court sanctions or penalties, incurred by PERFORMA in responding to any Compelled Disclosure. 6. Warranties, Limitations, and Disclaimers.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
11 Performa SaaS Agreement 433915v1
6.1 PERFORMA Warranty. PERFORMA warrants that it will provide the Service in a manner substantially consistent with this Agreement and any documentation provided by PERFORMA in connection with the Service. 6.2 Sole Remedy for PERFORMA Warranty. In the event that PERFORMA provides the Service on the terms set forth in this Agreement in a manner that significantly affects the use of the Service, the App, or Admin Console and Client so notifies PERFORMA with a written report of such failure via email to [email protected], PERFORMA's sole obligation shall be to use commercially reasonable efforts to correct such failure promptly. 6.3 Limitations. Although PERFORMA has used its diligent efforts to ensure the accuracy, completeness, timeliness, and accessibility of the Service, Module(s), App, and Admin Console, Client agrees that neither PERFORMA nor PERFORMA's third-party software or service providers shall have any liability whatsoever for the accuracy, completeness, timeliness, or accessibility of the Service, Module(s), App, and Admin Console, or for any decision made or action taken by Client or Users in reliance upon information or data conveyed through the Service, Module(s), App, and Admin Console, or for interruption of any aspect of the Service, Module(s), App, and Client Console. Client agrees and acknowledges that PERFORMA shall in no event be held responsible for any problems with the Service, Module(s), App or Admin Console attributable to the public or private Internet infrastructure or Client’s and Users’ ability to connect to the Internet. 6.4 Authorization. PERFORMA is either (i) the owner of the Software, App, Admin Console, and Module(s) or (ii) authorized to provide the Service pursuant to the terms of this Agreement, and has sufficient right, title, and interest in the Software, App, Admin Console, and Module(s) to grant the license contemplated by this Agreement, and (iii) PERFORMA is not currently engaged in any litigation or legal proceeding of any kind, the subject of which is the Service, Software, App, Admin Console, and Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
12 Performa SaaS Agreement 433915v1
Module(s); and to the knowledge of PERFORMA, no legal action pertaining in any manner to the Service, Software, App, Admin Console, and Module(s) is threatened. 6.5 Open-Source Software. The Service, Software, and App do not make use of Open-Source Software in any way that would otherwise make the Service, Software, or App Open-Source Software. 6.6 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, THE SERVICES ARE PROVIDED BY PERFORMA AND ITS THIRD-PARTY SOFTWARE AND SERVICE PROVIDERS WITH NO WARRANTIES OF ANY KIND EXCEPT THOSE EXPRESSLY SET FORTH IN THIS SECTION 6, AND PERFORMA AND ITS THIRD-PARTY SOFTWARE AND SERVICE PROVIDERS HEREBY DISCLAIM ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PERFORMA DOES NOT WARRANT THAT THE SERVICE, MODULE(S), APP, AND ADMIN CONSOLE WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE. 7. Limitation of Liability. 7.1 Limitation of Liability. EXCEPT FOR ACTIONS FOR NON-PAYMENT, BREACH OF INTELLECTUAL PROPERTY RIGHTS, INDEMNIFICATION OBLIGATIONS IN SECTION 8 OR BREACHES OF SECTIONS 3.3 OR 5.3, IN NO EVENT SHALL EITHER PARTY BE ENTITLED TO INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR RELIANCE DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, UNDER ANY CLAIM OR CAUSE OF ACTION, WHETHER BASED ON LEGAL OR EQUITABLE DOCTRINES. IN NO EVENT WILL PERFORMA’S LIABILITY TO CLIENT ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO PERFORMA BY Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
13 Performa SaaS Agreement 433915v1
CLIENT IN THE 12 MONTHS PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION THAT GIVES RISE TO THE CLAIM. 7.2 Data Charges. In no event shall PERFORMA be liable for data or connection charges incurred by Client, Client Admin(s), and Users to download, access, or use the App, Admin Console, or Service. 7.3 Basis of Bargain; Failure of Essential Purpose. Client acknowledges that PERFORMA has furnished access to the Service, App, Admin Console, and Module(s)in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. Client agrees that the limitations and exclusions of liability and disclaimers specified herein will apply and survive termination even if found to have failed their essential purpose. 8. Indemnification. 8.1 Client Indemnification. Subject to PERFORMA’s indemnification obligations in Section 8.2, and in addition to Client’s indemnification obligations set forth in Section 5.6, Client shall indemnify PERFORMA against, and hold PERFORMA harmless from, any claim, demand, cause of action, damage, liability, or expense, including reasonable attorneys’ fees incurred by PERFORMA arising out of: (i) Client’s, Client Admins’ or Users’ improper or negligent use of the Service and App, or (ii) the acts or omissions of Client and its Client Admins, Users, employees, or agents. 8.2 PERFORMA Indemnification. PERFORMA expressly agrees to defend, save, hold harmless, and indemnify Client from any and all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses of any nature whatsoever resulting from, arising out of or relating to any claims that the Service and App or use thereof infringe any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right (collectively, "Intellectual Property Rights") of any third party, provided that Client gives PERFORMA prompt notice of such claim, suit or proceeding, and gives PERFORMA the full Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
14 Performa SaaS Agreement 433915v1
information and reasonable assistance in the defense or settlement of such claim, suit, or proceeding. PERFORMA shall be entitled to direct such defense and to settle or otherwise dispose of such claim, suit or proceeding with Client approval, reasonable approval will not be withheld. If PERFORMA believes at any time that the services infringe a third party's Intellectual Property Rights, PERFORMA may, (i) replace an infringing item with a non-infringing item that meets or exceeds the performance and functionality of the replaced item; or (ii) obtain for Client the right to continue to use the infringing item; (iii) modify the infringing item to be non-infringing, provided that, following any replacement or modification made pursuant to the foregoing, the services continue to function in conformance with this Agreement, and (iv) if (i) through (iii) are not commercially practicable, PERFORMA may terminate the Agreement and refund on a pro rata basis any unused portion of the Service Fees paid upfront. 8.2.1 Notwithstanding anything herein to the contrary, PERFORMA shall not be liable under this Article 8.2 for any claim for infringement based on the following: 8.2.1.1 Client’s modification of the Service, Software, Modules, App, or Admin Console without the written permission of PERFORMA. 8.2.1.2 Use of the Service, Software, Modules, App, or Admin Console in a manner other than as contemplated by this Agreement, or as authorized in writing by PERFORMA. 8.3 To the furthest extent allowed by law, PERFORMA shall defend, indemnify and hold harmless Client from and against any and all direct and indirect claims, losses, liabilities, damages, costs and expenses (including losses and costs incurred by Client and any reasonable attorney's fees and costs) which arise from PERFORMA’s negligence or willful misconduct; a breach of PERFORMA’s confidentiality (information not of public record) obligations arising from PERFORMA’s negligence or willful misconduct; or Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
15 Performa SaaS Agreement 433915v1
PERFORMA’s violation of a law applicable to PERFORMA’s performance under the contract. CLIENT must notify PERFORMA promptly in writing of the claim and give PERFORMA control over its defense or settlement with CLIENT approval, reasonable approval will not be withheld. CLIENT agrees to provide PERFORMA with reasonable assistance, cooperation, and information in defending the claim at PERFORMA’s expense. If PERFORMA subcontract all or any portion of the services to be performed under this Agreement, PERFORMA will require each subcontractor to indemnify, hold harmless and defend CLIENT and your officers, officials, employees, agents and volunteers in accordance with this paragraph. This section shall survive termination or expiration of this Agreement. 9. Termination. 9.1 Termination for Convenience. Client shall have the right to partially or completely cancel the Service upon thirty (30) days’ written notice to PERFORMA. Termination for convenience does not entitle Client to a refund of any fees paid for the Service, whether or not the Service has been used in full or in part. 9.2 Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration for a period of three (3) years: Sections 5 (excluding Section 5.2), 6, 7, 8, 9, 10, and 11. 9.3 User Data after Termination. PERFORMA may retain User Data after termination, subject to the provision of Section 5.5 and 5.5.1 above. Client may request to receive an electronic copy of User Data upon termination. 10. Dispute Resolution; Mediation. 10.1 Negotiation. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation directly between executives of each party who have authority to settle the controversy. Any party may give the other party written notice of any dispute that arises under this Agreement. Within 15 days after delivery of the written notice, the receiving party shall provide a written response. The notice and response Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
16 Performa SaaS Agreement 433915v1
shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party at the negotiation and of any other person who will accompany the executive. Within 30 days after delivery of the initial written notice, the designated executives of both parties shall meet at a mutually acceptable time and place. 10.1.1 Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the meeting of designated executives (“Meeting”). Ending the Meeting without a resolution shall not preclude further negotiation or mediation, if mutually desired by the parties. 10.1.2 All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation and the Meeting by any of the parties, their agents, employees, experts and attorneys are confidential, privileged, and inadmissible for any purpose, including impeachment, in a proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. 10.1.3 At no time prior to the conclusion of the Meeting shall either side initiate a legal proceeding related to this Agreement except to pursue a provisional remedy that is authorized by law or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 10.1 above. 10.1.4 All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraphs 10.1 and 10.1.1 above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
17 Performa SaaS Agreement 433915v1
10.1.5 If a party refuses to participate in the procedures and processes set forth in this Section 10.1, that party forfeits any right to recover prevailing party attorney’s fees and costs in any subsequent mediation or legal proceeding. 11. General Provisions. 11.1 Records Requests; Audits. From time to time during the Term of this Agreement, Client or its nominee, authorized agent, or representative may, in Client’s reasonable discretion, (a) request documentation or records regarding Client’s or its Users’ use of the Service or User Data, including for Client to comply with governmental or regulatory requests or requirements (any such request, a “Records Request”); and (b) on at least three (3) business days’ notice, inspect and audit PERFORMA’s records solely as they relate to this Agreement (an “Audit” and, together with a Records Request, an “Inspection”). All Audits shall be conducted during regular business hours and no more frequently than once in any 12-month period (except as otherwise required to comply with applicable law), and in a manner that does not unreasonably interfere with PERFORMA’s business operations. PERFORMA shall make available its books, records, equipment, information, and personnel as may be reasonably necessary to cooperate with any Inspection. Client shall only have access to and examine information directly related to Client’s or its Users’ use of the Service, and shall comply with all reasonable instruction communicated by PERFORMA in completing its Inspection. Client shall promptly reimburse PERFORMA for all expenses incurred by PERFORMA in connection with any Inspection, including but not limited to time and materials costs incurred to comply with any such request. 11.2 Choice of Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, exclusive of conflict or choice of law rules. Any legal action or proceeding arising out of or related to this Agreement shall be brought exclusively in the federal or state courts located in Fresno County, California.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
18 Performa SaaS Agreement 433915v1
11.3 No Benefit to Third Parties. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties, and they are not to be construed as conferring any rights on any other persons. 11.4 Notices. All notices or other written communications required or permitted to be. given sent pursuant to this Agreement shall be sent by overnight delivery, registered, or certified U.S. mail (return receipt requested) and addressed to the parties at the addresses first set forth above (or such other address as may be specified by like notice). 11.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objective of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. 11.7 Assignment. Neither party may assign or transfer this Agreement or any right or obligation hereunder without the other party's prior written consent; provided, that PERFORMA may assign this Agreement in connection with a sale or transfer of substantially all of the assets of, or a majority interest in the voting shares of, PERFORMA to, or the merger or consolidation of PERFORMA with or into, any other person or company. Any assignment made in violation of this provision shall be void. Client agrees that PERFORMA may subcontract the hosting and other services to be performed in connection with this Agreement, provided that any such subcontracting arrangement will not relieve PERFORMA of any of its obligations hereunder.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
19 Performa SaaS Agreement 433915v1
11.8 Force Majeure. Except for the obligation to pay money, neither party will be liable for failure or delay in performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, civil or military authority; terrorists, civil disturbance, fire or other catastrophe, parts shortages, governmental act, or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance. 11.9 Use of Client’s Name. Client agrees to allow PERFORMA to use Client’s name on client lists used for promotional purposes. PERFORMA is permitted to issue press releases or press statements concerning Client’s use of the service. 11.10 Entire Agreement. This Agreement and its attachments constitute the entire agreement between the parties as to its subject matter, and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of this Agreement and all such terms or conditions shall be null and void. 11.11 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. [SIGNATURES ON FOLLOWING PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C 20 Performa SaaS Agreement
433915v1
CITY OF FRESNO,
a California municipal corporation
By:
Mindy Casto
Police Chief
Fresno Police Department
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:
Jennifer M. Wharton Date
Deputy City Attorney
ATTEST:
TODD STERMER, MMC
City Clerk
By:
Deputy Date
PERFORMA LABS, INC.,
a Delaware corporation
By:
Name: Anderee Berengian
Title: Chief Executive Officer
By:
Name:
Glen Kim
Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
REVIEWED BY:
Addresses:
CITY:
City of Fresno Police Dept.
Attention: David Madrigal
Police Lieutenant
2326 Fresno St
Fresno, CA 93721
Phone: (559) 621-2169
E-mail: [email protected]
CONSULTANT:
PERFORMA LABS, INC.
Attention: Anderee Berengian
Chief Executive Officer
19600 Fairchild Rd, Suite 300
Irvine, CA 92612
Phone: 949-235-9925 (cell)
E-mail: [email protected]
Attachments: Attachment A
Attachments: Attachment B Insurance Requirements
Chief Financial Officer
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C 4/10/2025
21 Performa SaaS Agreement 433915v1
ATTACHMENT A PRICE LIST AND SERVICE FEE CALCULATION VENDOR FOR: Performa Labs, Inc. Fresno Police Department 19600 Fairchild Rd #300 2326 Fresno St. Irvine, CA 92612 Fresno, CA 93721 O: 888-PERFLAB Primary Contact: David Madrigal SUBSCRIPTION TERM: 3/1/2025 - 12/31/2026 TRAINING MODULE DESCRIPTION INTERNAL ID SEATS UNIT PRICE TOTAL Mental Health Decision Making Course (POST ID 1487-20908) CA_MH_25/26 215(1) $180.00 $38,700.00 Mental Health Decision Making Course (POST ID 1487-20908) CA_MH_25/26 635(2) $180.00 $114,300.00 (1) Seat licenses commence March 1, 2025, and expire on February 28, 2026. (2) Seats may be purchased, at Client’s sole discretion, on or before March 1, 2026, and expire on December 31, 2026. Seats and total cost included in this line item reflect the maximum expected number of Seats that Client may purchase for such term expiring December 31, 2026.
SUBTOTAL $153,000.00 TOTAL $153,000.00
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
22 Performa SaaS Agreement 433915v1
ATTACHMENT B INSURANCE REQUIRMENTS (a) Throughout the life of this Agreement, PERFORMA shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CLIENT'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CLIENT, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, PERFORMA or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to PERFORMA shall be withheld until notice is received by CLIENT that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CLIENT. Any failure to maintain the required insurance shall be sufficient cause for CLIENT to terminate this Agreement. No action taken by CLIENT pursuant to this section shall in any way relieve PERFORMA of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CLIENT that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by PERFORMA shall not be deemed to release or diminish the liability of PERFORMA, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CLIENT shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by PERFORMA. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of PERFORMA, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
23 Performa SaaS Agreement 433915v1
occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Cyber Liability (Privacy and Data breach) insurance appropriate to PERFORMA’S profession. Coverage shall be sufficiently broad to respond to duties and obligations as is undertaken by PERFORMA in this agreement and shall include but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines penalties and credit monitoring expenses with limits sufficient to respond to these obligations. MINIMUM LIMITS OF INSURANCE PERFORMA, or any party the PERFORMA subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CLIENT, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
24 Performa SaaS Agreement 433915v1
2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. CYBER LIABILITY insurance with limits of not less than: (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate UMBRELLA OR EXCESS INSURANCE In the event PERFORMA purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CLIENT, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS PERFORMA shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and PERFORMA shall also be responsible for payment of any self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
25 Performa SaaS Agreement 433915v1
The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. CLIENT, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. Additional Insured status under the General Liability policy shall be broad as that contained in ISO Form CG 20 10 04 13 or CG 20 26 04 13. 2. The coverage shall contain no special limitations on the scope of protection afforded to CLIENT, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, PERFORMA’S insurance coverage shall be primary insurance with respect to the CLIENT, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the CLIENT, its officers, officials, employees, agents and volunteers shall be in excess of PERFORMA’S insurance and shall not contribute with it. PERFORMA shall establish primary and non-contributory status under the General Liability policy by use of ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non contributory status as broad as that contained in ISO Form CG 20 01 04 13. All policies of insurance shall contain, or be endorsed to contain, the following provision: PERFORMA and its insurer shall waive any right of subrogation against CLIENT, its officers, officials, employees, agents and volunteers. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CLIENT. PERFORMA is also responsible for providing written notice to the CLIENT under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, PERFORMA shall furnish CLIENT with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CLIENT, PERFORMA shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. The Cyber Liability insurance shall cover claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information (including credit monitoring costs), alteration of electronic Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
26 Performa SaaS Agreement 433915v1
information, extortion and network security. Such coverage is required for claims involving any professional services for which PERFORMA is engaged with the Client for such length of time as necessary to cover any and all claims If the Cyber Liability insurance policy is written on a claims-made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by PERFORMA. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by PERFORMA, PERFORMA must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to CLIENT for review. 5. These requirements shall survive expiration or termination of the Agreement. Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by PERFORMA shall not be deemed to release or diminish the liability of PERFORMA, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by PERFORMA. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of PERFORMA, its principals, officers, agents, employees, persons under the supervision of PERFORMA, vendors, suppliers, invitees, consultants, subcontractors, or anyone employed directly or indirectly by any of them. VERIFICATION OF COVERAGE PERFORMA shall furnish CLIENT with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CLIENT’S Risk Manager or his/her designee prior Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C
27 Performa SaaS Agreement 433915v1
to CLIENT’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CLIENT, PERFORMA shall immediately furnish Client with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS If PERFORMA subcontracts any or all of the services to be performed under this Agreement, PERFORMA shall require, at the discretion of the CLIENT Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the Client to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CLIENT Risk Manager or designee. If no Side Agreement is required, PERFORMA will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry.
Docusign Envelope ID: 7EF7C64A-1DCD-4D73-A4D8-849BC3D9121C